State v. Perkins ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-38
No. COA20-572
Filed 18 October 2022
Wake County, Nos. 09 CRS 211758-60, 211765
STATE OF NORTH CAROLINA
v.
GREGORY A. PERKINS, Defendant.
Appeal by Defendant from judgments entered 19 February 2020 by Judge Paul
C. Ridgeway in Wake County Superior Court. First heard in the Court of Appeals 7
May 2014. Heard in the Court of Appeals again 21 June 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorneys General Amy
Kunstling Irene and Jonathan P. Babb, for the State.
Jason Christopher Yoder for the Defendant.
JACKSON, Judge.
¶1 This is this Court’s fourth opinion in this case. On 1 July 2014, this Court
issued an unpublished opinion finding no error in a 2012 trial that culminated in
Gregory A. Perkins’s (“Defendant”) conviction of first-degree rape of a child, incest,
and two counts of first-degree sexual offense. See State v. Perkins, 760 S.E.2d 38, 42
(2014) (unpublished) (“Perkins I”). On 21 July 2014, this Court entered an order
withdrawing the 1 July 2014 opinion, directing the Clerk of our Court not to certify
it, and retaining the cause for disposition by the original panel to which it had been
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Opinion of the Court
assigned. On 5 August 2014, this Court issued an amended opinion in the case, which
was also unpublished. See State v. Perkins, 235 N.C. App. 425, 763 S.E.2d 928, 2014
WL 3824261 (2014) (unpublished) (“Perkins II”). This amended opinion also found no
error in Defendant’s trial, see id. at *4; however, it corrected an error in this Court’s
first opinion, omitting some of the analysis in the first opinion because it was
erroneous. Compare Perkins I, 760 S.E.2d at 42 (“Defendant contends the trial court’s
use of his prior conviction to calculate his prior record level was prejudicial error, and
cites State v. West, 180 N.C. App. 664, 638 S.E.2d 508 (2006), in support of his
argument. . . . West is not applicable to the instant case[.]”) with Perkins II at 3
(“Defendant contends the trial court’s use of his prior conviction to calculate his prior
record level was prejudicial error. However, defendant stipulated to his prior record
level. . . . [D]efendant’s stipulation [] to his prior record level was binding.”).1 The
facts of this case are detailed in the Court’s 5 August 2014 amended opinion, so we
repeat only those necessary to understand the disposition of this appeal.
1 In State v. West, 180 N.C. App. 664, 669, 638 S.E.2d 508, 512 (2006), the trial court counted
a conviction as a prior conviction for sentencing even though the relevant charge had been joined for
trial with the charge for which the defendant was being sentenced and thus could not have qualified
as a prior conviction. We reasoned that “‘[a] person has a prior conviction when, on the date a criminal
judgment is entered, the person being sentenced has been previously convicted of a crime[,]” id.(quoting N.C. Gen. Stat. § 15A-1340.11(7)) (emphasis added), noting that while “[n]othing within the
Sentencing Act specifically addresses the effect of joined charges when calculating previous convictions
to arrive at prior record levels[,] . . . the assessment of a defendant’s prior record level using joined
convictions would be unjust and in contravention of the intent of the General Assembly.” Id. at 669-
70, 638 S.E.2d at 512. We therefore remanded the case for a resentencing.
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I. Background
¶2 On 30 December 2016, Defendant filed a motion for appropriate relief (“MAR”)
in Wake County Superior Court alleging that he received ineffective assistance of
counsel in his 2012 trial because his trial counsel stipulated that his prior record level
was II rather than I based on a charge—a count of indecent liberties—that had been
originally joined for trial with not only the four charges of which he was convicted in
2012, but also 15 others the State had previously voluntarily dismissed.2 The MAR
court denied the MAR.
¶3 On 21 June 2017, Defendant petitioned our Court for a writ of certiorari to
review the merits of the MAR court’s order. We granted the petition on 10 July 2017,
vacating the MAR court’s order, and remanding the case to the MAR court for
reconsideration of the MAR and for Defendant to conduct post-conviction discovery.
On 2 August 2018, the MAR court finally entered an order in which it concluded that
trial counsel’s stipulation that Defendant had a prior record level of II was erroneous
but that counsel’s error did not rise to the level of ineffective assistance of counsel.3
2 Just over a year before the 2012 trial, Defendant had been tried for 20 counts of various sex
crimes and the jury convicted him of only one—taking indecent liberties with a child—and was hung
on the remaining 19. Aside from the count of indecent liberties of which Defendant was convicted in
2011, the trial court declared a mistrial. At the 2012 trial, the State elected to proceed on only the
four charges of which Defendant was convicted in 2012.
3 As previously noted, under West, 180 N.C. App. at 669, 638 S.E.2d at 512, a sentencing court
cannot count a conviction as a prior conviction if the relevant charge was joined for trial with the
charge for which the defendant is being sentenced. The reason is that such a conviction does not
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The MAR court therefore ordered a resentencing.
¶4 On 19 February 2020, Judge Paul C. Ridgeway resentenced Defendant.
Correcting the trial court’s error, and the error in this Court’s two prior opinions, see
Perkins I, 760 S.E.2d at 42; Perkins II, 2014 WL 3824261 at 3, Judge Ridgeway
sentenced Defendant as a prior record level I offender rather than a prior record level
II offender, but otherwise imposed four consecutive, presumptive-term sentences for
the 2012 convictions, like the trial court had. Judge Ridgeway also entered orders on
19 February 2020 requiring Defendant to enroll in satellite-based monitoring (“SBM”)
for the rest of his life because of the 2012 convictions.
¶5 Defendant timely noted appeal from the judgments and on 14 December 2020
petitioned our Court for certiorari to review the SBM orders. On 18 January 2022,
this Court issued its third opinion in this case, issuing the writ of certiorari to review
the SBM orders per opinion. See State v. Perkins, 2022-NCCOA-38 (withdrawn)
(“Perkins III”). Because the Court issued the writ of certiorari per opinion, it
contemporaneously dismissed Defendant’s petition for certiorari as moot by order.
Nine days later, Defendant petitioned our Court for rehearing en banc or, in the
alternative, moved that we stay the mandate and withdraw the 18 January 2022
qualify as a prior conviction. Id. See also id. (“[A]ssessment of a defendant’s prior record level using
joined convictions would be unjust and in contravention of the intent of the General Assembly.”). Id.
at 669-70, 638 S.E.2d at 512.
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opinion. On 7 February 2022, we allowed Defendant’s motion to withdraw the Court’s
third opinion and dismissed the petition for rehearing en banc without prejudice to
any future petition for rehearing en banc Defendant might file after we issue this
opinion.
II. Jurisdiction
¶6 The withdrawal of the Court’s third opinion made the issuance of the writ of
certiorari therein a nullity, resurrecting Defendant’s 14 December 2020 petition for
certiorari to review the SBM orders. Consequently, the Court’s order entered
contemporaneously with the 18 January 2022 opinion dismissing Defendant’s
petition for certiorari as moot is not only descriptively erroneous—the petition is not
moot because the opinion allowing the same relief requested by the petition has since
been withdrawn and its award of that relief no longer exists, see, e.g., Chavez v.
McFadden, 374 N.C. 458, 467, 843 S.E.2d 139, 146 (2020) (“A case is ‘moot’ when a
determination is sought on a matter which, when rendered, cannot have any practical
effect on the existing controversy.”) (citation omitted)—the order dismissing the
petition as moot is a nullity itself, because it was predicated on what became a nullity,
see, e.g., Hill v. Stansbury, 224 N.C. 356, 357, 30 S.E.2d 150, 151 (1944) (“Where there
is a want of jurisdiction [] over . . . the process, it is the same as if there were no court.
Proceedings so had are said to be coram non judice, and are void.”). See Coram Non
Judice, Black’s Law Dictionary (11th ed. 2019) (defining coram non judice as
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Opinion of the Court
“[o]utside the presence of a judge” or “[b]efore a judge or court that is not the proper
one or that cannot take legal cognizance of the matter”).
¶7 The final judgments entered by the resentencing court on 19 February 2020
are otherwise properly before us under N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444.
¶8 In the exercise of our discretion, we issue the writ of certiorari. While Judge
Tyson disagrees with that decision, a majority of the Court concurs in issuance of a
writ of certiorari per opinion to review the 2020 orders. I am alone in reaching the
merits of Defendant’s arguments related to the 2020 SBM orders, however. Judge
Murphy concurs in the issuance of certiorari but would hold the trial court lacked
jurisdiction to enter the 2020 SBM orders and vacate them as set out in his separate
opinion. I would hold that Defendant’s arguments related to the 2020 SBM orders
lack merit and affirm the orders.
III. Analysis
A. Introduction
¶9 In light of the Court’s decision to review the 2020 SBM orders, and the
disagreement between my colleagues about whether the orders are properly before
our Court, this case presents three questions: first, are the indictments facially valid
where they identified the victim using the victim’s initials and date of birth?
Defendant argues in his brief to our Court that they are not. We hold that they are.
The panel is unanimous in that holding.
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¶ 10 The second question presented is whether the 2020 SBM orders are properly
before the Court. A majority of the Court agrees that they are, upon issuance of a
writ of certiorari per opinion, in the exercise of our discretion. See N.C. R. App. P.
21(a)(1) (“The writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of . . . orders of trial tribunals when the right to
prosecute an appeal has been lost by failure to take timely action[.]”).
¶ 11 The third is whether the orders violated the Fourth Amendment. I would hold
that they did not, under our Supreme Court’s decision in State v. Hilton, 378 N.C.
692, 2021-NCSC-115, 862 S.E.2d 806, and our Court’s recent decisions interpreting
and applying Hilton in State v. Carter, 2022-NCCOA-262 ¶¶ 18-20 and State v.
Anthony, 2022-NCCOA-414 ¶¶ 24-32—decisions we are bound to follow as an
intermediate appellate court that cannot overrule itself—see, e.g., Upchurch v. Harp
Builders, Inc., 2022-NCCOA-301 ¶ 11 (“[W]here a panel of this Court has decided a
legal issue, future panels are bound to follow that precedent. This is so even if the
previous panel’s decision involved narrowing or distinguishing an earlier controlling
precedent—even one from the Supreme Court[.]”) (quoting State v. Gonzalez, 263 N.C.
App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach
the issue of whether the orders violated the Fourth Amendment.
¶ 12 Their stated reasons differ. Judge Tyson would not issue a writ of certiorari
simply because Defendant’s Fourth Amendment arguments lack merit, and because
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Judge Tyson takes our Supreme Court’s decision in State v. Ricks, 378 N.C. 737, 2021-
NCSC-116, to be controlling here. In Ricks, the Supreme Court held that our Court
abused its discretion when it reviewed an SBM order upon issuance of a writ of
certiorari where the defendant’s petition did not “show merit or that error was
probably committed below.” Id. at 743, 2021-NCSC-116 ¶ 11. Under Ricks, the
jurisdictional question is thus not analytically prior to the merits of the appeal.
¶ 13 A majority of the Court agrees that this case is distinguishable from Ricks
because of the nature of the division of the panel on the second question presented by
the case. But my colleagues disagree about why we cannot review the merits of the
2020 SBM orders. While Judge Tyson argues doing so is an abuse of discretion under
Ricks because Defendant’s Fourth Amendment arguments lack merit, Judge Murphy
would hold that we lack subject matter jurisdiction to review the 2020 SBM orders—
setting aside whether the arguments about them have merit—even upon issuance of
a writ of certiorari, and even though Judge Murphy concurs in the issuance of the
writ. In other words, Judge Murphy agrees to grant a writ that expands our
jurisdiction to address the second issue raised by Defendant in his brief in order to
express the view that we have no jurisdiction over the issue, even though issuance of
the writ is what gives us jurisdiction over the issue. This is an unusual situation and
one unlike Ricks in the view of the majority of the Court, which includes Judge
Murphy.
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¶ 14 In Ricks, our Court issued a writ of certiorari and invoked Rule 2 of the North
Carolina Rules of Appellate Procedure to suspend the application of the Rules “[t]o
prevent manifest injustice[,]” N.C. R. App. P. 2, and reviewed two SBM orders, State
v. Ricks, 271 N.C. App. 348, 358, 843 S.E.2d 652, 661-62, rev’d, 378 N.C. 737, 2021-
NCSC-116 (2020), something our Court had been doing as a matter of course for quite
some time before the Supreme Court’s decision in Ricks, see State v. Barnes, 278 N.C.
App. 245, 247-50, 2021-NCCOA-304 ¶ 8-14; State v. Sheridan, 263 N.C. App. 697,
707-08, 824 S.E.2d 146, 154 (2019); State v. Oxendine, 206 N.C. App. 205, 209, 696
S.E.2d 850, 853 (2010), notwithstanding the view expressed frequently, if not entirely
consistently, Sheridan, 263 N.C. App. at 707-08, 824 S.E.2d at 154, by Judge Tyson
in this case, who was also the dissenting judge in Ricks when the case was at our
Court, see, e.g., Ricks, 271 N.C. App. at 364-65, 843 S.E.2d at 666, (Tyson, J.,
dissenting) (“To trigger this Court’s discretion to allow the petition and issue the writ,
Defendant’s ‘petition for this writ of certiorari must show merit or that error was
probably committed below.’”) (marks omitted) (quoting State v. Grundler, 251 N.C.
177, 189, 111 S.E.2d 1, 9 (1959)). Judge Tyson’s view prevailed at the Supreme Court
in Ricks, however.
¶ 15 I would invoke Rule 2 and suspend the application of the North Carolina Rules
of Appellate Procedure in this case “to prevent manifest injustice[,]” but the manifest
injustice I wish to prevent is not the “harsh[] . . . result [that] application of our
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Appellate Rules . . . [results in] a defendant [being] deprived of any relief from a
potentially unconstitutional order[.]” State v. Cozart, 260 N.C. App. 96, 104, 817
S.E.2d 599, 604 (2018) (Zachary, J., concurring).
¶ 16 Instead, the manifest injustice I would prevent by invoking Rule 2 to review
the SBM orders and holding that they do not violate Defendant’s Fourth Amendment
rights is what my colleagues’ project appears to be, though they disagree about the
means to achieve it—which is to avoid following our Court’s recent, controlling
decisions in Carter and Anthony, even though that is what In re Civil Penalty, 324
N.C. 373, 379 S.E.2d 30 (1989), Gonzalez, and Upchurch—controlling precedent from
our Court—require. See, e.g., In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37(“Where a panel of the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.”); Gonzalez, 263 N.C. App. 527, 531,
823 S.E.2d at 888 (“This is so even if the previous panel’s decision involved narrowing
or distinguishing an earlier controlling precedent—even one from the Supreme
Court—as was the case in In re Civil Penalty.”); Upchurch, 2022-NCCOA-301 ¶ 12
(noting that our Court cannot overrule itself unless “two lines of irreconcilable
precedent develop independently—meaning the cases never acknowledge each other
or their conflict”). If my colleagues agreed on the means to achieve this end, the
manifest injustice that would result would be the deliberate “creation of two lines of
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irreconcilable precedent[.]” Gonzalez, 263 N.C. App. at 531, 823 S.E.2d at 889.
¶ 17 Because (1) a majority of the Court issues a writ of certiorari to review the 2020
SBM orders per opinion; (2) In re Civil Penalty, Gonzalez, and Upchurch mean that
our Court’s interpretation and application of Hilton in Carter and Anthony control on
the issue of whether the 2020 SBM orders violated Defendant’s rights under the
Fourth Amendment—even over the Supreme Court’s decision in Hilton itself—see
Gonzalez, 263 N.C. App. at 531, 823 S.E.2d at 888-89; (3) Carter holds that “[o]ur
Supreme Court’s decision in Hilton concluded that for aggravated offenders, [such as
Defendant,] the imposition of lifetime SBM causes only a limited intrusion into [a]
diminished privacy expectation[,]” 2022-NCCOA-262 ¶ 24, and therefore does not
violate the Fourth Amendment; and (4) review of the reasonableness of an SBM order
is de novo, id. ¶ 14, I would hold that Defendant’s Fourth Amendment rights were
not violated by the 2020 SBM orders.
B. The Indictments Are Facially Valid
¶ 18 Defendant argues that the indictments are facially invalid because rather than
identifying the victim by name, they identify the victim by the victim’s initials and
date of birth. We disagree. The panel is unanimous on this point.
¶ 19 “It is well settled that a valid bill of indictment is essential to the jurisdiction
of the trial court to try an accused for a felony.” State v. Campbell, 368 N.C. 83, 86,
772 S.E.2d 440, 443 (2015) (internal marks and citation omitted). “The purpose of
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the indictment is to give a defendant reasonable notice of the charge against his so
that he may prepare for trial.” Id. (citation omitted). “[A]n indictment must allege
all the essential elements of the offense . . . , but an indictment couched in the
language of the statute is generally sufficient[.]” State v. Mostafavi, 370 N.C. 681,
685, 811 S.E.2d 138, 141 (2018) (cleaned up). An indictment is facially invalid only if
it omits an element of the offense charged. State v. Sechrest, 277 N.C. App. 372, 375,
2021-NCCOA-204 ¶ 10.
¶ 20 Short-form indictments specifically authorized by statute are deemed facially
valid, even if they omit an element of the offense charged, as long as they comply with
the enabling statute. See, e.g., State v. Lowe, 295 N.C. 596, 599-604, 247 S.E.2d 878,
881-84 (1978) (affirming the authority of the General Assembly “to relieve the State
of the common law requirement that every element of the offense be alleged”).
Moreover, we have previously held that under N.C. Gen. Stat. §§ 15-144.1 and -144.2,
short-form indictments charging the crimes of rape and statutory sexual offense using
the victim’s initials to identify the victim are facially valid. State v. McKoy, 196 N.C.
App. 652, 657-58, 675 S.E.2d 409, 411-14, disc. rev. denied, 363 N.C. 586, 683 S.E.2d
215 (2009).
¶ 21 However, because a facially invalid indictment does not “confer subject-matter
jurisdiction on the trial court[,]” State v. Lyons, 268 N.C. App. 603, 607, 836 S.E.2d
917, 920 (2019), (citation omitted), “[a] defendant can challenge the facial validity of
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an indictment at any time, and a conviction based on an invalid indictment must be
vacated[,]” Campbell, 368 N.C. at 86, 772 S.E.2d at 443 (citation omitted). “[W]e
review the sufficiency of an indictment de novo.” McKoy, 196 N.C. App. at 652, 675
S.E.2d at 409.
¶ 22 The indictments charging Defendant with rape and statutory sexual offense
identify the victim with greater precision than required by McKoy or N.C. Gen. Stat.
§§ 15-144.1 and -144.2, the statutes authorizing the use of short-form indictments to
charge rape and statutory sexual offense, because they include the victim’s date of
birth as well as the victim’s initials. McKoy controls here and we hold that these
indictments are facially valid. They provided Defendant with ample notice to prepare
a defense, as well as adequately defining the offenses so that Defendant could plead
the verdicts in bar of any double jeopardy.
¶ 23 North Carolina General Statute § 14-178(a) defined incest at the relevant time
in pertinent part here as the crime of a “person engag[ing] in carnal intercourse with
the person’s . . . legally adopted child[.]” N.C. Gen. Stat. § 14-178(a) (2008).
¶ 24 The indictment charging Defendant with incest avers in relevant part that
on or about December 1, 2008 through December 31, 2008,
. . . [Defendant] unlawfully, willfully and feloniously did
have carnal intercourse with CBA (dob: [XX/XX/XXXX]),
who is [] [Defendant’s] stepchild and [] [Defendant] was
aware that he was CBA’s stepfather.
¶ 25 This indictment contains all of the elements of the offense, and the allegations
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hew carefully to the statutory definition of the crime. It too provided Defendant with
ample notice to prepare a defense, as well as defining the offense sufficiently to
prevent the risk of double jeopardy. We therefore hold that this indictment is facially
valid as well.4
C. The SBM Orders Are Properly Before Our Court
¶ 26 Certiorari is one means available to appellate courts like ours to enlarge our
jurisdiction.5 See N.C. R. App. P. 21(a)(1). It is “a common law writ issuing from a
superior court to an inferior court, . . . commanding it to send up the record of a
particular case for review.” Wheeler v. Thabit, 261 N.C. 479, 480, 135 S.E.2d 10, 11
4 The State argues that this issue is outside the scope of this appeal because it “goes beyond
the limited scope of this Court’s 10 July 2017 order remanding this case to the superior court for
reconsideration of [D]efendant’s MAR.” While we are sympathetic to the intuition behind this
argument—that Defendant is, on some level, getting a second bite at the apple by raising an argument
in his second appeal to our Court that was not raised in the first—we note that both appeals were
appeals of right, and there is no rule against what Defendant has done. In addition, because the facial
validity of an indictment is a subject matter-jurisdictional requirement, State v. Lyons, 268 N.C. App.
603, 607, 836 S.E.2d 917, 920 (2019), “[a] defendant can challenge the facial validity of an indictment
at any time,” State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (citation omitted). It
should be familiar learning that “the proceedings of a court without jurisdiction of the subject matter
are a nullity, and without subject matter jurisdiction, a court has no power to act.” Boseman v. Jarrell,
364 N.C. 537, 548, 704 S.E.2d 494, 502 (2010) (cleaned up). The State’s argument that our
consideration of this issue is barred by the doctrine of res judicata fails for the same reason.
5 Another is the express authorization the General Assembly has given us in N.C. Gen. Stat.
§ 7A-32(c), which confers “[t]he Court of Appeals [with] [] jurisdiction . . . to supervise and control the
proceedings of . . . trial courts[.]” N.C. Gen. Stat. § 7A-32(c) (2021). Our Supreme Court has construed
§ 7A-32(c) to authorize “the appellate courts of this State in their discretion [to] review an order of the
trial court, not otherwise appealable, when such review will serve the expeditious administration of
justice or some other exigent purpose.” Stanback v. Stanback, 287 N.C. 448, 453-54, 215 S.E.2d 30,
34-35 (1975). A third is our Court’s precedent that Rule 21(a)(1) of the North Carolina Rules of
Appellate Procedure authorizes us to treat an appeal “as a petition for writ of certiorari[.]” Luther v.
Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008).
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(1964) (citations omitted). Issuance of the writ divests the lower court of jurisdiction
over the matter. See id. at 480-81, 135 S.E.2d at 11. Certiorari is a discretionary
writ, and as such, is “not one to which the moving party is entitled as a matter of
right.” Womble v. Moncure Mill & Gin Co., 194 N.C. 577, 579, 140 S.E. 230, 231
(1927). “[D]iscretion in a legal sense means the power of free decision; undirected
choice; the authority to choose between alternative courses of action.” Burton v. City
of Reidsville, 243 N.C. 405, 407, 90 S.E.2d 700, 702 (1956).
¶ 27 In Ricks, relying on old cases that emphasized the importance of the
underlying merit of a petition for certiorari to a court’s decision to issue the writ, our
Supreme Court held that our Court abused its discretion when it suspended the
application of the Rules of Appellate Procedure under Rule 2 and reviewed two SBM
orders upon issuance of a writ of certiorari where the defendant’s petition did not
“show merit or that error was probably committed below.” Id. at 741, ¶ 6 (quoting
Grundler, 251 N.C. at 189, 111 S.E.2d at 9 (citing In re Snelgrove, 208 N.C. 670, 672,
182 S.E. 335, 336 (1935)). The language of many of these old cases make issuance of
a writ of certiorari seem like an extraordinarily difficult request to get a court to
accede to indeed. See, e.g., In re Snelgrove, 208 N.C. at 671-72, 182 S.E. at 336(“Certiorari is a discretionary writ, to be issued only for good or sufficient cause
shown, and the party seeking it is required, not only to negative laches on his part in
prosecuting the appeal, but also to show merit or that he has reasonable grounds for
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asking that the case be brought up and reviewed on appeal. Simply because a party
has not appealed, or has lost his right of appeal, even through no fault of his own, is
not sufficient to entitle him to a certiorari. A party is entitled to a writ of certiorari
when–and only when–the failure to perfect the appeal is due to some error or act of
the court or its officers, and not to any fault or neglect of the party or his agent. Two
things, therefore, should be made to appear on application for certiorari: First,
diligence in prosecuting the appeal, except in cases where no appeal lies, when
freedom from laches in applying for the writ should be shown; and, second, merit, or
that probable error was committed on the hearing.”) (cleaned up).
1. The History of Rule Appellate Rule 21 Suggests that Ricks Was
Wrongly Decided
¶ 28 When the Rules of Appellate Procedure were first adopted on 13 June 1975, see
287 N.C. at 671, the language of Rule 21—which is virtually unchanged in the version
of Rule 21 in effect today, except for the additions of subsection (e) in 1984, see 312
N.C. at 824, and subsection (f) in 1988, see 324 N.C. at 662—was, and today still is,
much more obliging than the language of those old cases. Compare N.C. R. App. P.
21(a)(1) (“The writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of . . . orders of trial tribunals when the right to
prosecute an appeal has been lost by failure to take timely action[.]”) (emphasis added)
with In re Snelgrove, 208 N.C. at 672, 182 S.E. at 336 (“Simply because a party has
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not appealed, or has lost his right of appeal, even through no fault of his own, is not
sufficient to entitle him to a certiorari.”) (emphasis added). Instead, Rule 21
provided, as it does today, see N.C. R. App. P. 21(a)(1), that “[t]he writ of certiorari
may be issued in appropriate circumstances by either appellate court to permit review
of . . . orders of trial tribunals when the right to prosecute an appeal has been lost by
failure to take timely action[,]” 287 N.C. at 728.
¶ 29 The Drafting Committee notes to Rule 21 explain that the Rule “establishes
that certiorari may lie from either appellate court to permit review of trial tribunal
judgments when [an] ordinary appeal right has been lost or does not exist” and,
“following traditional practice in the use of this discretionary writ, . . . the question of
its timeliness in a particular case is to be determined as a part of the general question
of its propriety as an extraordinary mode of review.” Id. at 730 (emphasis added).
The Drafting Committee notes add that the provisions of subsection (c) of Rule 21
that do not relate to timeliness, e.g., that “[t]he petition shall be filed without
unreasonable delay[,]” N.C. R. App. P. 21(c), “elaborate upon the more sketchy
descriptions of the practice contained in former Sup[erior] C[ourt] R[ule] 34[,]” 287
N.C. at 730, which refers to the good cause requirement that had to be met before a
trial court could enter an order granting a motion to compel production of discovery
prior to 1975, Stanback v. Stanback, 287 N.C. 448, 459, 215 S.E.2d 30, 38 (1975).
¶ 30 In 1975, the Rules of Appellate Procedure—and specifically, the operative
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language of Rule 21(a) that remains unchanged today—were adopted, and the
previously existing good cause requirement of Rule 34 of the North Carolina Rules of
Civil Procedure was removed. See 287 N.C. at 671; 1975 S.L. 762 § 2. The Official
Commentary to Rule 34 of the North Carolina Rules of Civil Procedure explains that
“[t]he overwhelming proportion of the cases in which the formula of good cause ha[d]
been applied . . . [we]re those involving trial preparation” and that courts had not
been properly “treat[ing] documents as having . . . immunity to discovery[,]” so with
the adoption of the new provisions of the Rules of Civil Procedure in 1975 “to govern
trial preparation materials and experts, there [was] no longer any occasion to retain
the requirement of good cause” in Rule 34. N.C. Gen. Stat. § 1A-1, Rule 34 (2021)
(off. cmt.). Thus, according to the Official Commentary to Rule 34, a reduced need for
safeguards against the wrongful disclosure of material protected by the work product
doctrine was the reason the good faith requirement was no longer needed in Rule 34.
¶ 31 The difference between the text of Rule 21 of the Rules of Appellate Procedure
and the language of old cases like Snelgrove and Grundler our Supreme Court relied
upon in holding that we abused our discretion by reviewing the SBM orders at issue
in Ricks is the same requirement of good cause the General Assembly eliminated from
Rule 34 of the Rules of Civil Procedure in 1975, the same year the Rules of Appellate
Procedure were adopted. See 1975 S.L. 762 § 2; 287 N.C. at 671. While the bodies
that made these changes were different—the Drafting Committee drafted the Rules
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of Appellate Procedure and our Supreme Court approved them, see 287 N.C. at 671—
and the General Assembly adopted Session Law 1975-762, see 1975 S.L. 762—it
seems a fair inference that the drafters of Rule 21 of the Rules of Appellate Procedure
and our Supreme Court in adopting Rule 21 in 1975 intended to discard, rather than
retain, the good cause requirement for issuance of a writ of certiorari the old cases
relied upon by our Supreme Court in Ricks suggests existed prior to the adoption of
the Rules of Appellate Procedure in 1975.
¶ 32 The reason is that certiorari is a discretionary writ and the express language
of the version of Rule 21 adopted by the Supreme Court in 1975 is flatly inconsistent
with the language of the old cases predating its adoption. See, e.g., 287 N.C. at 728(“The writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of . . . orders of trial tribunals when the right to
prosecute an appeal has been lost by failure to take timely action[.]”) (emphasis added);
In re Snelgrove, 208 N.C. at 672, 182 S.E. at 336 (“Simply because a party has not
appealed, or has lost his right of appeal, even through no fault of his own, is not
sufficient to entitle him to a certiorari.”) (emphasis added).
¶ 33 Since the best evidence of the inference that the drafters of Rule 21 of the Rules
of Appellate Procedure and our Supreme Court in adopting Rule 21 in 1975 intended
to discard, rather than retain, the good cause requirement for issuance of a writ of
certiorari is the language the drafters chose and the Supreme Court approved in
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Opinion of the Court
1975—which is unchanged today—the Supreme Court in Ricks should have applied
Rule 21 as it is written rather than as it had described the writ of certiorari in an
opinion that predated the adoption of Rule 21 by 40 years. Rule 21 provides that
“[t]he writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of . . . orders of trial tribunals when the right to
prosecute an appeal has been lost by failure to take timely action[.]” N.C. R. App. P.
21(a)(1) (emphasis added). See also 287 N.C. at 728 (“The writ . . . may be issued in
appropriate circumstances . . . when the right to prosecute an appeal has been lost by
failure to take timely action[.]”) (emphasis added). “Appropriate” means “right for
the purpose; suitable; fit; proper[.]” Appropriate, Webster’s New World College
Dictionary 70 (5th ed. 2014).
¶ 34 We should first “look to the plain meaning of the [words of Rule 21] to ascertain
[our Supreme Court’s] intent.” Town of Boone v. State, 369 N.C. 126, 132, 794 S.E.2d
710, 715. See also Antonin Scalia and Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 69 (2012) (“The ordinary-meaning rule is the most
fundamental semantic rule of interpretation. It governs constitutions, statutes,
rules, and private instruments. Interpreters should not be required to divine arcane
nuances or to discover hidden meanings.”). “Because the actual words used” by the
drafters and adopted by our Supreme Court “are the clearest manifestation of [their]
intent, we [should] give every word . . . effect, presuming . . . [each word was] carefully
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chose[n.]” N.C. Dep’t of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641,
649 (2009) (citation omitted). As the Drafting Committee notes to Rule 21 explain,
the Rule “follow[s] traditional practice in the use of this discretionary writ[.]” 287
N.C. at 730 (emphasis added). “Discretion” is “the power of free decision; undirected
choice; the authority to choose between alternative courses of action.” Burton, 243
N.C. at 407, 90 S.E.2d at 702.
¶ 35 We also must be mindful of the longstanding presumption that the lawmakers
in 1975 were “fully cognizant of prior and existing law within the subject matter of
[their] enactment.” Biddix v. Henredon Furniture Indus., Inc., 76 N.C. App. 30, 34,
331 S.E.2d 717, 720 (1985) (citation omitted). In doing so, we must bear in mind “the
long-standing rules of interpretation and construction . . . [,] expressio unius est
exclusio alterius, [i.e.,] the expression of one thing is the exclusion of another.”
Mangum v. Raleigh Bd. of Adjustment, 196 N.C. App. 249, 255, 674 S.E.2d 742, 747
(2009). “Expressio unius, also known as inclusio unius, is . . . the communicative
device known as negative implication.” Scalia & Garner, supra, at 107. Although
“application of the expressio unius canon depends . . . on context,” Cooper v. Berger,
371 N.C. 799, 810, 822 S.E.2d 286, 296 (2018) (internal marks and citation omitted),
“[t]he doctrine properly applies [] when the unius (or technically, unum, the thing
specified) can reasonably be thought to be an expression of all that shares in the grant
or prohibition involved[,]” Scalia & Garner, supra, at 107.
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Opinion of the Court
¶ 36 I do not believe it is a stretch to infer from the elimination of the good cause
requirement in Rule 45 of the Rules of Civil Procedure in 1975 in the “rewrit[ing] [of]
the Rules of Civil Procedure [g]overning [d]iscovery and [d]epositions[,]” 1975 S.L.
762 (title), and the absence of a good cause requirement in the text of Rule 21 of the
Rules of Appellate Procedure adopted by our Supreme Court that same year, see 287
N.C. at 671, that the drafters of Rule 21 in drafting Rule 21 and our Supreme Court
in adopting it intended to eliminate the good cause requirement for issuance of a writ
of certiorari suggested in such demanding terms by the old cases relied upon by the
Supreme Court in Ricks. To my mind, the “unum, the thing specified[,]” that is, the
rules of court applicable in North Carolina in 1975, including not only the Rules of
Civil Procedure, but also the Rules of Appellate Procedure, “can reasonably be
thought to [have] be[en] an expression of all that shares in the . . . [elimination]
involved[,]” Scalia & Garner, supra, at 107, that is, the good cause requirement
articulated in such demanding terms by the Supreme Court in Snelgrove, which was
decided 40 years before Rule 21 of the Rules of Appellate Procedure was adopted.
2. Ricks Was a Sharp Rebuke of a Decade-Long Practice of Our Court
¶ 37 To promote judicial economy and avoid the “harsh[] . . . result [of] . . . a
defendant [being] deprived of [] relief from a potentially unconstitutional order[.]”
Cozart, 260 N.C. App. at 104, 817 S.E.2d at 604 (Zachary, J., concurring), our Court
had routinely and efficiently been issuing writs of certiorari and suspending the Rules
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Opinion of the Court
of Appellate Procedure under Rule 2 in cases involving SBM orders that had not been
properly appealed prior to our Supreme Court’s decision in Ricks. See Barnes, 278
N.C. App. at 247-50, 2021-NCCOA-304 ¶ 8-14; Sheridan, 263 N.C. App. at 707-08,
824 S.E.2d at 154; Oxendine, 206 N.C. App. at 209, 696 S.E.2d at 853. Rule 2
authorizes our Court to “suspend or vary the requirements or provisions” of the North
Carolina Rules of Appellate Procedure “[t]o prevent manifest injustice to a party, or
to expedite decision in the public interest, . . . in a case pending before [us] upon
application of a party or upon [our] own initiative,” allowing us to “order proceedings
in accordance with [our] directions.” N.C. R. App. P. 2.
¶ 38 The reason SBM orders are frequently not properly appealed is the
idiosyncratic requirement that an SBM order be appealed in writing because it is
considered civil rather than criminal in nature, State v. Brooks, 204 N.C. App. 193,
194-95, 693 S.E.2d 204, 206 (2010), while appeal from the judgment entered upon the
jury’s verdict containing the rest of a particular offender’s sentence can be noticed in
open court, N.C. R. App. 4(a)(1). In virtually every case in which our Court had been
suspending the Rules of Appellate Procedure under Rule 2 and reviewing an
improperly appealed SBM order upon issuance of a writ of certiorari prior to our
Supreme Court’s decision in Ricks, the reason appeal had not been properly noticed
from the SBM order was that defense counsel had neglected to enter written notice
of appeal of the SBM order separately from the oral notice of appeal counsel gave in
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Opinion of the Court
open court after the trial court sentenced the defendant. See, e.g., Barnes, 278 N.C.
App. at 247-48, 2021-NCCOA-304 ¶ 9 (“Because of the civil nature of SBM hearings,
a defendant must file a written notice of appeal from an SBM order pursuant to
Appellate Rule 3. . . . In the present case, because [the] defendant’s oral notice of
appeal was insufficient to confer jurisdiction on this Court . . . , defendant filed a
petition for a writ of certiorari . . . seeking review of the order imposing lifetime
enrollment in SBM.”); Sheridan, 263 N.C. App. at 707, 824 S.E.2d at 154 (“Defendant
did not file written notice of appeal for the SBM determination, as required by N.C.
R. App. P. 3. Defendant filed a petition for writ of certiorari, requesting this Court to
consider his arguments on the merits.”); Oxendine, 206 N.C. App. at 209, 696 S.E.2d
at 853 (“We note that [the] defendant gave oral notice of appeal at the SBM hearing
from the trial court’s final order. . . . [D]efendant’s oral notice of appeal is insufficient
to confer jurisdiction on this Court. . . . However, . . . we ex mero motu treat [the]
defendant’s brief as a petition for certiorari and grant said petition to address the
merits of defendant’s appeal.”).
¶ 39 See also State v. Mack, 277 N.C. App. 505, 515, 2021-NCCOA-215 ¶ 30-31;
State v. Gordon, 278 N.C. App. 119, 124, 2021-NCCOA-273 ¶ 15; State v. Robinson,
275 N.C. App. 876, 886, 854 S.E.2d 407, 413 (2020); State v. Mangum, 270 N.C. App.
327, 333-34, 840 S.E.2d 862, 867-68 (2020); State v. Thompson, 273 N.C. App. 686,
689, 852 S.E.2d 365, 369 (2020); State v. Hutchens, 272 N.C. App. 156, 159-60, 846
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S.E.2d 306, 310 (2020); State v. Perez, 275 N.C. App. 860, 864-65, 854 S.E.2d 15, 20
(2020); State v. Lopez, 264 N.C. App. 496, 503-04, 826 S.E.2d 498, 503-04 (2019); State
v. Harding, 258 N.C. App. 306, 320, 813 S.E.2d 254, 265 (2018); State v. Lindsey, 260
N.C. App. 640, 642, 818 S.E.2d 344, 346 (2018); State v. Martinez, 253 N.C. App. 574,
585 n.7, 801 S.E.2d 356, 363 n.7 (2017); State v. Dye, 254 N.C. App. 161, 167-68, 802
S.E.2d 737, 741 (2017); State v. Shore, 255 N.C. App. 420, 424, 804 S.E.2d 606, 609
(2017); State v. Springle, 244 N.C. App. 760, 762-64, 781 S.E.2d 518, 520-21 (2016);
State v. Robinson, 249 N.C. App. 568, 571-72, 791 S.E.2d 862, 865 (2016); State v.
Harris, 243 N.C. App. 728, 732, 778 S.E.2d 875, 878 (2015); State v. Hicks, 239 N.C.
App. 396, 400, 768 S.E.2d 373, 375-76 (2015); State v. Green, 229 N.C. App. 121, 128,
746 S.E.2d 457, 464 (2013); State v. Lineberry, 221 N.C. App. 241, 242, 726 S.E.2d
205, 206-07 (2012); State v. Brown, 211 N.C. App. 427, 441 n.7, 710 S.E.2d 265, 275
n.7 (2011); State v. Mann, 214 N.C. App. 155, 157, 715 S.E.2d 213, 215 (2011); State
v. Towe, 210 N.C. App. 430, 434, 707 S.E.2d 770, 774 (2011); State v. Stokes, 216 N.C.
App. 529, 537-38, 718 S.E.2d 174, 180 (2011); State v. Green, 211 N.C. App. 599, 600-
01, 710 S.E.2d 292, 294 (2011); State v. Clark, 211 N.C. App. 60, 70-71, 714 S.E.2d
754, 761-62 (2011); State v. Sprouse, 217 N.C. App. 230, 238-39, 719 S.E.2d 234, 241
(2011); State v. May, 207 N.C. App. 260, 262, 700 S.E.2d 42, 44 (2010); State v.
Williams, 207 N.C. App. 499, 501, 700 S.E.2d 774, 775 (2010); State v. Cowan, 207
N.C. App. 192, 195-96, 700 S.E.2d 239, 241-42 (2010); State v. Clayton, 206 N.C. App.
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300, 302-03, 697 S.E.2d 428, 430-31 (2010); State v. Brooks, 204 N.C. App. 193, 194-
95, 693 S.E.2d 204, 206 (2010).
3. Some of the Consequences of Ricks May Not have Been Intended
¶ 40 Ricks expresses a judgment that our Court’s permissive invocation of Rule 2
and generosity in issuing writs of certiorari to review SBM orders had been excessive
over the roughly ten-year course of that practice of our Court documented above. See,
e.g., 378 N.C. at 742, 2021-NCSC-116 ¶ 10 (“Defendant is no different from other
defendants who failed to preserve their constitutional arguments.”). And perhaps it
had been. Yet, the Supreme Court’s holding in Ricks has had—and will continue to
have—a tremendous practical impact at our Court, which may not have been
intended. For Ricks is understood to hold not just that the jurisdictional question is
not analytically prior to the merits of the appeal in a case where an SBM order has
not been properly appealed; instead, it is understood to hold that the jurisdictional
question is not analytically prior to the merits of the appeal in all cases. And that
understanding has created conditions favorable to the proliferation of a shadow
docket at our Court, and a shadow docket at our Court has proliferated because of
Ricks.
¶ 41 In a shadow docket, a court enters “a range of orders and summary decisions
that defy its normal procedural regularity.” William Baude, Foreword: The Supreme
Court’s Shadow Docket, 9 N.Y.U. J. L. & Liberty 1 (2015). Shadow dockets have
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Opinion of the Court
recently increasingly become the subject of criticism among members of the legal
profession and even the general public because the summary disposition of cases in a
shadow docket suffers from a lack of transparency. See id. The reason is simple: for
most everyone, they are black boxes; nobody knows what goes on inside them, and
that undermines public confidence in the results they produce.
¶ 42 The proliferation of a shadow docket at our Court also has troubling
implications for North Carolinians because in North Carolina, except in exceptional
appeals—namely, capital appeals, business court appeals, and class action
certification appeals, N.C. Gen. Stat. § 7A-27(a) (2021)—a North Carolinian’s right to
an appeal of right to our Supreme Court generally depends on whether there was a
dissent at our Court in the appellant’s first appeal of right, id. § 7A-30(2). Although
there is an exception from this rule for appeals “that directly involve[] a substantial
question arising under the Constitution of the United States or of this State[,]” and
the Supreme Court always enjoys the power to review any appeal in its discretion, id.
§ 7A-31(a), generally speaking, an appellant in North Carolina does not have an
appeal of right to our Supreme Court unless there is division among the judges of our
Court and one of the judges on the three-judge panel assigned to decide the case at
our Court authors a dissent, see id. § 7A-30(2).
¶ 43 If the jurisdictional question is not analytically prior to the merits of the
appeal, as it now no longer is because of our Supreme Court’s decision in Ricks, then
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Opinion of the Court
there is a category of cases that will be dismissed by our Court based on the analysis
in Ricks that would have been the same cases where the appellant had an appeal of
right to our Supreme Court before Ricks was decided. The shadow docket at our
Court after Ricks is populated by these cases. See, for example, below, a picture of
the first page of an order deciding a case on the shadow docket of our Court that now
exists because of Ricks. Before Ricks was decided, the defendant in that case would
have unquestionably enjoyed an appeal of right to our Supreme Court under N.C.
Gen. Stat. § 7A-30(2). After Ricks, however, it is less clear if this same defendant has
such a right.
¶ 44 Orders like the one below also are difficult to access—even for members of the
legal profession, let alone by the general public—because they are not available in
popular legal research databases and a person interested in reviewing such an order
needs to know the case number to access the order on the Court’s website.
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¶ 45 Nevertheless, a majority of the Court in this case issues a writ of certiorari.
Ricks is therefore distinguishable from this case in my view because of the nature of
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Opinion of the Court
the division of the Court on both the second and third issues presented in this case,
with each judge writing an opinion in seriatim because none agrees with the other.
While Judge Tyson believes Ricks controls here, a majority of the Court holds that
this case is distinguishable from Ricks because of the nature of the division of the
Court. Ricks involved a more straightforward voting breakdown, with two judges in
full agreement in the majority and Judge Tyson dissenting. Because of the lack of
agreement among the judges of this panel on the second and third issues in the case,
Judge Murphy and I issue a writ of certiorari on behalf of the Court to review the
2020 SBM orders.
D. Carter Requires Us to Affirm the 2020 Orders
¶ 46 I would invoke Rule 2 and suspend the application of the North Carolina Rules
of Appellate Procedure to review the SBM orders and hold that they do not violate
Defendant’s Fourth Amendment rights. Our Court’s recent decisions in Carter and
Anthony hold that review of the reasonableness of an SBM order is de novo, 2022-
NCCOA-262 ¶ 14; 2022-NCCOA-414 ¶ 9, and “that the SBM statute as applied to
aggravated offenders [such as Defendant, all of whose four convictions at issue in this
appeal qualify as aggravated offenses under N.C. Gen. Stat. § 14-208.6,] is not
unconstitutional[,]” 2022-NCCOA-262 ¶ 18. I would therefore affirm the 2020 SBM
orders.
¶ 47 I concede that the reasonableness of the 2020 SBM orders has not been
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Opinion of the Court
preserved for appellate review as required by precedent from our Court, Cozart, 260
N.C. at 101, 817 S.E.2d at 603, and our Supreme Court, Ricks, 2021-NCSC-116 ¶ 10,
because Defendant’s MAR counsel did not dispute the reasonableness of Defendant
being required to enroll in lifetime SBM at the 2020 resentencing. This is not entirely
surprising based on Defendant’s age at the time of the resentencing hearing, however:
the resentencing court’s decision whether to impose consecutive, presumptive-term
sentences for the convictions like the trial court had, but with a correct prior record
level calculation, or to instead impose concurrent sentences for the convictions was
the difference between Defendant ever being released from prison or not. It is not
surprising then that Defendant’s MAR counsel did not dispute the reasonableness of
the resentencing court’s decision to order Defendant to enroll in lifetime SBM after
the resentencing court had decided to impose consecutive, presumptive-term
sentences for the convictions like the trial court had and not run the four sentences
concurrently: being required to enroll in lifetime SBM matters little to someone who
is never getting out of prison.
¶ 48 Fully cognizant that I am “tak[ing] two extraordinary steps to reach the
merits[,]” State v. Bishop, 255 N.C. App. 767, 768-69, 805 S.E.2d 367, 369 (2017)
(emphasis in original), and entirely persuaded that “[f]undamental fairness . . .
depend[s] upon the consistent exercise” of our Court’s discretion to take “the
extraordinary step of suspending the operation of the appellate rules[,]” State v. Hart,
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Opinion of the Court
361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007), I would invoke Rule 2 to review the
constitutionality of the 2020 orders because, as noted above, it appears to me that my
colleagues intend to avoid following our Court’s recent, controlling decisions in Carter
and Anthony, even though that is what In re Civil Penalty, Gonzalez, and Upchurch
require. See In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37; Gonzalez, 263 N.C.
App. at 531, 823 S.E.2d at 888; Upchurch, 2022-NCCOA-301 ¶ 12. As noted above, if
my colleagues agreed on the means to achieve this end, the manifest injustice that
would result would be the deliberate “creation of two lines of irreconcilable
precedent[.]” Gonzalez, 263 N.C. App. at 531, 823 S.E.2d at 889.
¶ 49 In my view, this is not a situation where “similarly situated litigants are
permitted to benefit from [Rule 2] but others are not[,]” Bishop, 255 N.C. App. 767,
770, 805 S.E.2d 367, 370, because as to Defendant, the outcome of our Court’s
resolution of this third and final issue presented by this appeal would be the same if
any of the judges’ opinions were the opinion of the Court: (1) I would affirm the 2020
orders because Carter requires that result (while suspending the rules to review an
unpreserved constitutional argument to prevent In re Civil Penalty from being
violated); (2) Judge Tyson would dismiss this portion of the appeal, leaving the 2020
orders in effect; and (3) Judge Murphy would hold that the trial court lacked
jurisdiction to enter the 2020 SBM orders and they should be vacated, as the 2012
orders are still in effect today. Thus, no litigant situated similarly to Defendant
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Opinion of the Court
would benefit any more or less than Defendant from my invocation of Rule 2 here
because not even Defendant benefits from it.
¶ 50 But our law does. As noted above, In re Civil Penalty means that our Court’s
interpretation and application of Hilton in Carter controls on the issues of whether
the 2020 SBM orders violated Defendant’s rights under the Fourth Amendment and
whether review of preserved challenges to the reasonableness of lifetime SBM orders
is de novo, 2022-NCCOA-262 ¶ 14, and Carter holds that “[o]ur Supreme Court’s
decision in Hilton concluded that for aggravated offenders, [such as Defendant,] the
imposition of lifetime SBM causes only a limited intrusion into [a] diminished privacy
expectation[,]” 2022-NCCOA-262 ¶ 24, and therefore does not violate the Fourth
Amendment, ¶ 18. As North Carolina’s intermediate appellate court, we must follow
our prior decisions, Upchurch, 2022-NCCOA-301 ¶ 11, unless “two lines of
irreconcilable precedent develop . . . [that] never acknowledge each other or their
conflict[,]” ¶ 12, as would be true if Judge Murphy’s separate opinion were a majority
opinion.
4. The Separate Opinions
¶ 51 Judge Tyson’s opinion reads Ricks too broadly. As noted above, I believe that
this case is distinguishable from Ricks and Judge Murphy concurs in issuing a writ
of certiorari in this case per opinion. Also as previously noted, I believe that the
history of Rule 21 suggests that Ricks was wrongly decided, and that Ricks has had
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Opinion of the Court
negative—and perhaps, unintended—consequences, creating a shadow docket at our
Court.
¶ 52 I must also conclude that Judge Murphy’s conclusion that the trial court lacked
jurisdiction to enter the 2020 SBM orders is erroneous. Judge Murphy cites our
Court’s decision in State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428 (2010), in
support of this conclusion. This conclusion, however, appears to be based on a serious
misreading of Clayton.
¶ 53 Clayton involved an offender who a trial judge purported to order to enroll in
SBM for ten years on the basis of a probation violation, 206 N.C. App. at 301-02, 697
S.E.2d at 430, when the statute that authorizes trial courts to enter SBM orders only
does so upon an offender’s conviction “of a reportable conviction as defined by G.S. 14-
208.6(4)[.]” N.C. Gen. Stat. § 14-208.40B(a) (2008) (emphasis added). See also N.C.
Gen. Stat. § 14-208.40B(a) (2021) (same). At the risk of stating the obvious, probation
violations are not and were not included in the list of reportable convictions contained
in § 14-208.6(4), see N.C. Gen. Stat. § 14-208.6(4) (2021); N.C. Gen. Stat. § 14-208.6(4)
(2008), because probation violations are not crimes, see, e.g., State v. Sparks, 362 N.C.
181, 187, 657 S.E.2d 655, 659 (2008) (“[A] proceeding to revoke probation is not a
criminal prosecution.”) (internal marks and citation omitted). Although refraining
from committing additional crimes is a regular condition of probation in North
Carolina, N.C. Gen. Stat. § 15A-1343(b)(1) (2021), “a probation violation is not a crime
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Opinion of the Court
in itself,” Clayton, 206 N.C. App. at 305, 697 S.E.2d at 432.
¶ 54 Probation revocation hearings are frequently described as informal and
summary, Sparks, 362 N.C. at 187, 657 S.E.2d at 659, where the North Carolina
Rules of Evidence do not apply, State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d
356, 358 (2014). Unlike at a criminal trial, at a probation revocation hearing, “the
alleged violation . . . need not be proven beyond a reasonable doubt” and all that is
required instead is “that the evidence be such as to reasonably satisfy the judge in
the exercise of h[er] sound discretion that the defendant has willfully violated a valid
condition of probation.” Id. (internal marks and citations omitted). “Accordingly, the
decision of the trial court is reviewed for abuse of discretion.” Id. (citation omitted).
¶ 55 Writing for our Court in Clayton, Judge, now Chief Judge, Donna Stroud
reasoned that in the absence of any indication in the record that there had been
compliance with the notice requirements of N.C. Gen. Stat. § 14-208.40B—the statute
authorizing trial courts to enter orders requiring offenders to enroll in SBM—or any
of the findings of fact in the order at issue that are required by that statute, and more
fundamentally, because “a probation violation is not a crime . . . , much less a
‘reportable conviction[,]’” the trial court in that case lacked jurisdiction either to
conduct the hearing or to order the defendant to enroll in SBM for ten years. 206
N.C. App. at 305-06, 697 S.E.2d at 432-33.
STATE V. PERKINS
2022-NCCOA-38
Opinion of the Court
¶ 56 Clayton was thus a straightforward application of the timeworn principle that
where jurisdiction is statutorily conferred—as it is in the probation revocation context
as well as the SBM context—a court cannot run afoul of its statutory remit, and when
it does so, the extent of the excess is a nullity. Wooten, 194 N.C. App. at 527, 669
S.E.2d at 750. Judge Murphy reads Clayton as standing for a much broader
proposition—that a trial court lacks jurisdiction to order an offender to enroll in SBM
at any sentencing hearing other than the first sentencing that occurs after the
offender is found guilty of a reportable offense and the original SBM order has not
been specifically set aside. Judge Murphy’s theory is that an SBM order does not
qualify as a “sentence.”
¶ 57 I disagree with this theory. For one, it was not the rationale for our Court’s
holding in Clayton, nor is it compelled or even supported by Clayton. Second, it does
not follow from our Supreme Court’s holding that “the SBM program . . . is not
punitive in purpose or effect[,]” State v. Bowditch, 364 N.C. 335, 336, 700 S.E.2d 1, 2
(2010), as Judge Murphy suggests. See, e.g., infra, at ___ (“As SBM is not a criminal
sentence of punishment resulting from criminal judgment, but is instead a ‘civil,
regulatory scheme,’ I conclude the trial court did not vacate the 2012 SBM orders by
vacating Defendant’s sentence.”) (citations omitted).
a. North Carolina Law Embraces an Expansive View of the Purposes and
Kinds of Sentences Offenders Can Face in State Court
STATE V. PERKINS
2022-NCCOA-38
Opinion of the Court
¶ 58 The word “sentence” is a broad one. It is true that it has been defined as “[t]he
judgment that a court formally pronounces after finding a criminal defendant guilty”
or “the punishment imposed on a criminal wrongdoer.” Sentence, Black’s Law
Dictionary (11th ed. 2019). But not all sentences a criminal defendant can face in
state court in North Carolina are solely punitive in nature—some are remedial, at
least in part. See, e.g., N.C. Gen. Stat. § 15A-1340.34(a) (2021) (“When sentencing a
defendant convicted of a criminal offense, the court shall determine whether the
defendant shall be ordered to make restitution to any victim of the offense in
question.”). In other words, Judge Murphy’s theory that an SBM order cannot be a
sentence because our Supreme Court has held that the SBM program is not punitive
draws an equivalence between something definitionally qualifying as a sentence and
having a purely punitive purpose, which excludes a sentence—restitution—from
qualifying as a sentence—when a trial court is required to consider it as a sentence
under N.C. Gen. Stat. § 15A-1340.34(a) in every criminal case in North Carolina
resulting in conviction. See id.
¶ 59 Our General Assembly has not taken the narrow view of what the word
“sentence” means that Judge Murphy’s separate opinion does. Section 15A-1340.12
of the General Statutes articulates four, interrelated yet distinct purposes of
sentencing in criminal cases in state court in North Carolina:
[(1)] impos[ing] a punishment commensurate with the
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2022-NCCOA-38
Opinion of the Court
injury the offense has caused, taking into account factors
that may diminish or increase the offender’s culpability;
[(2)] protect[ing] the public by restraining offenders;
[(3)] assist[ing] the offender toward rehabilitation and
restoration to the community as a lawful citizen; and
[(4)] provid[ing] a general deterrent to criminal behavior.
N.C. Gen. Stat. § 15A-1340.12 (2021). Judge Murphy’s separate opinion ignores the
clearly expressed intent of the General Assembly in § 15A-1340.12 by insisting that
the only purpose of a sentence can be punishment and if the SBM program does not
qualify as punishment then it cannot be a sentence. But that insistence ignores
codified evidence of legislative intent to the contrary.
¶ 60 Consistent with the third purpose of sentencing in North Carolina articulated
by our General Assembly in N.C. Gen. Stat. § 15A-1340.12, some sentences imposed
by North Carolina trial courts have purely rehabilitative purposes, or at least the
potential to be purely rehabilitative. As our Court has held, the purpose of
suspending an offender’s sentence and imposing a sentence of probation is “to further
the reform of the defendant.” State v. Simpson, 25 N.C. App. 176, 180, 212 S.E.2d
566, 569 (1975). Section 15A-1343(b1) of the General Statutes authorizes trial courts
to sentence offenders to probation that includes special conditions of probation in
addition to the regular conditions of probation, such as receiving medical or
psychiatric treatment, “[a]ttend[ing] or resid[ing] in a facility providing
STATE V. PERKINS
2022-NCCOA-38
Opinion of the Court
rehabilitation, counseling, treatment, social skills, or employment training,
instruction, recreation, or residence[,]” participating in rehabilitative treatment for
sexual abuse in cases where evidence exists of “physical, mental or sexual abuse of a
minor[,]” or “[s]atisfy[ing] [] other conditions determined by the court to be reasonably
related to [the offender’s] rehabilitation.” N.C. Gen. Stat. § 15A-1343(b1)(1), (2), (9),
(10) (2021) (emphasis added).
¶ 61 According to Judge Murphy’s theory of what qualifies as a sentence, an
offender sentenced to one of the special conditions of probation listed above has not
been sentenced, or at least, the portion of the offender’s sentence that has a
rehabilitative purpose does not qualify as part of the offender’s sentence. Put another
way, Judge Murphy’s theory of what a sentence is cannot account for a sentence with
a rehabilitative purpose qualifying as a sentence at all and a suspended sentence is
a contradiction in terms rather than a disposition available to sentencing courts
across North Carolina.
¶ 62 Not all sentences North Carolina law authorizes our trial courts to impose have
a punitive, or primarily punitive, purpose. Our General Assembly has made express
provision for rehabilitation as a purpose of sentencing under North Carolina’s
criminal law and for the imposition of remedial and rehabilitative sentences in our
state courts. In my view, Judge Murphy’s separate opinion errs in suggesting
otherwise. Because I would hold that the 2020 SBM orders did qualify as part of
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Opinion of the Court
Defendant’s sentence, I would hold that the trial court had subject matter jurisdiction
to enter these orders at the 19 February 2020 resentencing.
b. An Offender Should Not Need to Preserve a Challenge to the
Reasonableness of an SBM Order to Preserve It for Our Review
¶ 63 I would like to add that I disagree with the precedent from our Supreme Court
and from our Court about whether Defendant’s Fourth Amendment arguments are
properly before us because they were not raised first in the court below at the
resentencing hearing before Judge Ridgeway. I take this opportunity to do so because
the only portion of this opinion with precedential value is Part B—the Court’s holding
related to the facial validity of the indictments. The decision by a majority of the
Court consisting of Judge Murphy and I concurring to issue a writ of certiorari per
opinion is a discretionary one that has no precedential value.
¶ 64 As we observed in State v. Dye, 254 N.C. App. 161, 802 S.E.2d 737 (2017), “N.C.
Gen. Stat. § 15A-1446(d) provides that when a defendant asserts that a ‘sentence
imposed was unauthorized at the time imposed, exceeded the maximum authorized
by law, was illegally imposed, or is otherwise invalid as a matter of law[,]’ appellate
review of such errors may be obtained regardless of whether an objection was made
at trial.” 254 N.C. App. at 168, 802 S.E.2d at 742 (quoting N.C. Gen. Stat. § 15A-
1446(d)(18)). Regardless of whether one agrees that the SBM system is merely a civil
regulatory enforcement regime or not, I believe it is abundantly obvious that being
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Opinion of the Court
required to enroll in SBM for the remainder of one’s life for committing an offense
defined as an aggravated offense by N.C. Gen. Stat. § 14-208.6 is part of an offender’s
sentence. The purpose of this portion of the sentence, in my view, is the second
purpose of sentencing articulated by our General Assembly in N.C. Gen. Stat. § 15A-
1340.12—protecting the public. I concede that our decision in Dye not only has not
stood the test of time, it was inconsistent with controlling precedent from our Court
when it was decided in 2017. I still think it is right. Were it not for the precedent
from our Court and our Supreme Court dictating a contrary result, in this case, as in
Dye, I would hold that “Defendant’s argument was preserved, notwithstanding his
failure to object in the trial court[.]” 254 N.C. App. at 168, 802 S.E.2d at 742.
IV. Conclusion
¶ 65 We hold that the indictments are facially valid. A majority of the Court issues
a writ of certiorari per opinion. This opinion otherwise is the opinion of only one judge
of the Court, but the 2020 SBM orders remain undisturbed.
AFFIRMED.
Judge TYSON concurs in result only by separate opinion.
Judge MURPHY concurs in part, concurs in result only in part, and dissents
by separate opinion.
No. COA20-572 – State v. Perkins
TYSON, Judge, concurring in the result only.
¶ 66 We all agree Defendant’s indictments are sufficient and valid to support his
underlying convictions. Defendant argues the trial court erred in imposing lifetime
satellite-based monitoring (“SBM”). He asserts the State failed to meet its burden of
proving the imposition of lifetime SBM amounted to a reasonable search under the
Fourth Amendment and was ordered without any argument or evidence to support
the reasonableness of the SBM’s Fourth Amendment search. U.S. Const. amend. IV
and XIV.
I. Petition for Writ of Certiorari
¶ 67 The State responds and argues Defendant failed to properly preserve this issue
because Defendant failed to object on any basis, constitutional or otherwise, to the
imposition of lifetime SBM, did not appeal, waived appellate review, and has shown
no merit or prejudice to warrant the issuance of a writ of certiorari (“PWC”). See State
v. Grundler, 251 N.C. 177, 188-89, 111 S.E.2d 1, 9 (1959) (death penalty appeal)
(“Ordinarily an order or judgment will not be set aside unless it appears that there is
merit and that a different result probably will be reached by so doing.”); State v. Ricks,
378 N.C. 737, 741, 2021-NCSC-116, ¶6-7, 862 S.E.2d 835, 838-39 (2021) (holding that
certiorari is purely a discretionary writ, a defendant’s petition must show merit and
prejudice, and a defendant’s failure to object to an SBM order at trial prevents him
from raising the issue on appeal). I agree with the State that Defendant has not
carried his burden and vote to deny the PWC and to dismiss the petition. Grundler,
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2022-NCCOA-38
TYSON, J., concurring in the result only
251 N.C. at 188-89, 111 S.E.2d at 9; Ricks, 378 N.C. at 741, 2021-NCSC-116, ¶6-7,
862 S.E.2d at 838-39.
II. Appellate Rule 10
¶ 68 Rule 10 of our Rules of Appellate Procedure clearly requires a defendant to
make “a timely request, objection, or motion, stating the specific grounds for the
ruling the party desired the [trial] court to make[.]” N.C. R. App. P. 10(a)(1). “It is
well settled that an error, even one of constitutional magnitude, that [the] defendant
does not bring to the trial court’s attention is waived and will not be considered on
appeal.” State v. Bell, 359 N.C. 1, 28, 603 S.E.2d 93, 112 (2004) (death penalty appeal)
(citing State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002), cert. denied, 537
U.S. 1117, 154 L.Ed.2d 795 (2003)).
¶ 69 The record clearly shows Defendant failed to make the required objection
before the trial court or to asset any constitutional challenge and has waived
appellate review of this issue. See Ricks, 378 N.C. at 740, 2021-NCSC-116, ¶ 5, 862
S.E.2d at 838 (holding that certiorari is purely a discretionary writ and citing to N.C.
R. App. P. 10(a)(1) in reviewing the imposition of lifetime SBM). “Where a panel of
the Court of Appeals has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent, unless it has been
overturned by a higher court.” In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,
37 (1989) (emphasis supplied).
STATE V. PERKINS
2022-NCCOA-38
TYSON, J., concurring in the result only
¶ 70 As Chief Justice Frye reminded us in Dunn v. Pate: “[T]he Court of Appeals
. . . has ‘no authority to overrule decisions of [the] Supreme Court and [has] the
responsibility to follow those decisions until otherwise ordered by the Supreme
Court.’” 334 N.C. 115, 118, 431 S.E.2d 178,180 (1993); see also Dunn v. Pate, 106 N.C.
App. 56, 60, 415 S.E.2d 102, 104 (quoting Cannon v. Miller, 313 N.C. 324, 327 S.E.2d
888 (1985)).
III. Appellate Rule 2
¶ 71 Defendant also requests this Court to invoke Rule 2 of the North Carolina
Rules of Appellate Procedure and exercise its discretion to reach the merits of his
argument. N.C. R. App. P. 2. “[W]e will not ordinarily consider a constitutional
question not raised before the trial court, [and] Defendant cannot prevail on this issue
without our invoking Rule 2, because his constitutional argument was waived.” State
v. Spinks, 277 N.C. App. 554, 571, 2021-NCCOA-218, ¶ 51, 860 S.E.2d 306, 320 (2021)
(citations and quotations omitted); see also Ricks, 378 N.C. at 740, 2021-NCSC-116,
¶ 5, 862 S.E.2d at 838.
¶ 72 I concur with Judge Murphy in our discretion not to invoke Rule 2 to review
Defendant’s unpreserved and waived argument, and his assertion of a purported
constitutional violation for the first time on appeal. Ricks, 378 N.C. at 740, 2021-
NCSC-116, ¶ 5, 862 S.E.2d at 838 (citing PWC and proper imposition of Rules of
Appellate Procedure 2 and 10(a)(1) in reviewing the imposition of lifetime SBM); Bell,
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2022-NCCOA-38
TYSON, J., concurring in the result only
359 N.C. at 28, 603 S.E.2d at 112; see also N.C. R. App. P. 2 & 10(a)(1).
¶ 73 While I vote to deny Defendant’s frivolous PWC and dismiss, I concur in the
result with Judge Jackson’s mandate to affirm the trial court’s judgment.
No. COA20-572 – State v. Perkins
MURPHY, Judge, concurring in part, concurring in result only in part, and
dissenting in part.
¶ 74 As explained in more detail below, I respectfully concur with Judge Jackson in
part as to the validity of the indictments, concur in result only in part as to the
issuance of a petition for writ of certiorari to review the 2020 SBM Orders, and dissent
in part as to the validity of the 2020 SBM Orders.
¶ 75 An indictment for a sex crime that refers to a victim by her initials is facially
valid when (1) a person of common understanding would know the intent of the
indictment was to charge the offender with the offense stated in the indictment and
(2) the offender’s constitutional rights to notice and freedom from double jeopardy are
adequately protected. Here, the use of the victim’s initials in two sex offense with a
child indictments, one first-degree rape indictment, and one incest indictment did not
render the indictments fatally defective because a person of common understanding
would know the intent of the indictments was to charge Defendant with the offenses
as stated in the indictments and Defendant’s constitutional rights to notice and
freedom from double jeopardy were adequately protected.
¶ 76 A trial court’s subject matter jurisdiction to enter a satellite-based monitoring
(“SBM”) order is statutorily limited. Where a trial court purports to enter additional
SBM Orders at a resentencing hearing and the original SBM Orders remain binding,
it acts beyond its statutory authority and without jurisdiction, rendering the
additional SBM Orders invalid and leaving the original SBM Orders in effect.
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
BACKGROUND
¶ 77 This appeal includes a lengthy procedural history. We summarized the
underlying facts of this case in one of Defendant’s earlier appeals as follows:
In June 1998, [D]efendant [Gregory Aldon Perkins] was
hired by “Jane”[6] to perform computer system work for the
Town of Albemarle. At that time, Jane was married with
two girls, [Katrina] and [Maria]; [D]efendant was also
married but had no children. Defendant and Jane
separated from their spouses to begin dating each other.
They married in June 2001 and subsequently moved from
Albemarle to Apex.
[Maria] testified that when she was in the third grade,
[D]efendant began to sexually abuse her. Defendant would
give [Maria] a back rub before moving his hands beneath
her clothes. The sexual abuse included [D]efendant
digitally penetrating her vagina and performing oral sex on
her. Defendant also taught [Maria] how to perform oral
sex on him. According to [Maria], the abuse occurred as
many as four times a week.
In the summer before she began the sixth grade,
[D]efendant had vaginal intercourse with [Maria].
Defendant offered [Maria] a “deal” by which she could
receive things such as new clothes, no curfew restrictions,
or spending more time with friends if she cooperated with
his requests for sex. When [Maria] was in the ninth grade,
[D]efendant convinced Jane to let [Maria] start taking
birth control. [Maria] reiterated that [D]efendant would
typically abuse her about four times a week.
In 2008, [D]efendant announced that he was unhappy with
his marriage to Jane and wanted to move out of the house.
6 I use pseudonyms for all relevant persons throughout this opinion to protect the identity of
the juveniles and for ease of reading.
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
Defendant’s last sexual encounter with [Maria] occurred
sometime between Christmas 2008 and January 2009
when he moved out.
In October 2009, [Maria] became upset while looking at
pictures of accused sexual offenders in a newspaper and
told her boyfriend that [D]efendant had sexually abused
her. [Maria] then told her sister, [Katrina], and her
mother, Jane, that [D]efendant had abused her “for a long
time.” Jane called the Apex Police Department.
The Apex Police interviewed [Maria], [Katrina], Jane, and
[Maria’s] boyfriend. They also interviewed two childhood
friends of [Maria] who, years before, had been told by
[Maria] that she was being sexually abused by [D]efendant.
Mental health counselors determined that [Maria] was
depressed and exhibited symptoms of post-traumatic stress
disorder associated with long-term child sexual abuse.
When interviewed by the Apex Police, [D]efendant denied
[Maria’s] allegations and stated that [Maria] created the
allegations against him because she did not want
[D]efendant to reconcile with Jane.
State v. Perkins, COA13-1352, 235 N.C. App. 425, 763 S.E.2d 928, 2014 WL 3824261,
at *2 (2014) (unpublished) (“Perkins I”), disc. rev. denied, (further citation omitted)
(2015).7 On 5 January 2010, Defendant was indicted, inter alia, for two counts of
first-degree sexual offense with a child (one count by digital vaginal penetration and
7 To further protect the minor and consistent with our evolving practices regarding
protection of innocent persons, I exercise my discretion to prevent the unnecessary inclusion of
potentially identifying information regarding the victim in this case and her family. I note that this
exercise of discretion, an inherent authority of our Court, is consistent with changes in the protection
of victims’ rights as reflected in Article I, § 37 (titled Rights of Victims of Crime) of our State’s
Constitution (commonly known as Marsy’s Law), as enabled by N.C. Session Law 2019-216, and is in
furtherance of the procedures adopted by our Supreme Court’s 2019 amendments to Rule 42 of the
North Carolina Rules of Appellate Procedure. N.C. Const. art. I, § 37; see 2019 S.L. 216; N.C. R.
App. P. 42 (2019).
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
one count by cunnilingus), one count of indecent liberties with a child, one count of
first-degree rape of a child, and one count of incest.
¶ 78 Defendant’s first trial began in November 2010. On 29 November 2010, a
mistrial was declared after the jury failed to reach a unanimous verdict. Defendant
was retried on 19 September 2011. The jury found Defendant guilty of one count of
taking indecent liberties with a child but was unable to reach unanimous verdicts on
the other charges. As a result, the trial court declared a mistrial for the remaining
charges and sentenced Defendant on the one indecent liberties conviction. Defendant
received, as a Prior Record Level I offender, an active sentence of 16 to 20 months.
¶ 79 Defendant did not timely appeal the indecent liberties conviction. As the only
remaining avenue to appellate review, Defendant filed a Petition for Writ of Certiorari
with this Court for the purpose of reviewing the judgment entered upon his indecent
liberties conviction. We allowed his petition and found no error. State v. Perkins,
COA15-5, 243 N.C. App. 208, 778 S.E.2d 475, 2015 WL 5123912 (2015) (unpublished)
(“Perkins II”), disc. rev. denied, appeal dismissed, (further citation omitted) (2015).
¶ 80 In 2012, Defendant was retried for the remaining charges: two counts of first-
degree sexual offense with a child, one count of first-degree rape, and one count of
incest. On 4 December 2012, the jury found Defendant guilty on these charges.
During sentencing, Defense Counsel stipulated to Defendant being sentenced as a
Prior Record Level II offender, with his indecent liberties conviction from the second
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
trial listed on the prior record level worksheet as his only prior conviction. Defendant
received three consecutive active sentences of 276 to 341 months for the two first-
degree sexual offense with a child convictions and the first-degree rape conviction.
Defendant further received a consecutive sentence of 19 to 23 months for the incest
conviction. Defendant was also ordered to register as a sex offender for his natural
life and to enroll in SBM for his natural life upon his release from imprisonment.
¶ 81 Defendant timely appealed the judgments from his third trial, arguing the trial
court erred (1) “in ruling that Defendant’s prior [indecent liberties with a child]
conviction was admissible”; (2) “in using Defendant’s prior [indecent liberties with a
child conviction] to calculate his prior record level”; and (3) “by failing to intervene ex
mero motu during the prosecutor’s arguments during sentencing.” Perkins I. We
found no error. Id.¶ 82 On 30 December 2016, Defendant filed a motion for appropriate relief (“MAR”),
arguing he received ineffective assistance of counsel at his third trial when Defense
Counsel stipulated to sentencing Defendant as a Prior Record Level II offender.
Defendant further argued he should be resentenced on the two first-degree sexual
offense with a child convictions, the first-degree rape conviction, and the incest
conviction as a Prior Record Level I offender. The trial court denied Defendant’s
MAR.
¶ 83 Defendant subsequently filed a Petition for Writ of Certiorari with this Court
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
seeking review of the trial court’s order denying his MAR. We allowed the petition,
vacated the trial court’s order denying the MAR, and remanded the case for
reconsideration in light of our holdings in State v. West, 180 N.C. App. 664, 638 S.E.2d
508 (2006), disc. rev. denied, appeal dismissed, 361 N.C. 368, 644 S.E.2d 562 (2007),
and State v. Watlington, 234 N.C. App. 601, 759 S.E.2d 392, disc. rev. denied, 367
N.C. 791, 766 S.E.2d 644 (2014). On remand, the trial court “[found] the stipulation
to be erroneous” but did “not find that the stipulation by trial counsel [rose] to the
level of ineffective assistance of counsel[.]” As a result, the trial court ordered a new
sentencing hearing.
¶ 84 On 19 February 2020, Defendant was resentenced as a Prior Record Level I
offender for the two first-degree sexual offense with a child convictions, the first-
degree rape conviction, and the incest conviction. Pursuant to the trial court’s
judgments dated 19 February 2020, Defendant received three consecutive active
sentences of 240 to 297 months each for the two first-degree sexual offense with a
child convictions and the first-degree rape conviction. Defendant further received a
consecutive sentence of 16 to 23 months for the incest conviction. The trial court
further ordered that, “upon release from imprisonment, [Defendant] shall enroll in
[SBM] for his[] natural life[.]”
¶ 85 On 2 March 2020, Defendant timely filed a written Notice of Appeal. On 14
December 2020, Defendant filed a Petition for Writ of Certiorari, seeking our review
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
of the order requiring him to enroll in lifetime SBM in the event we conclude his
written Notice of Appeal failed to comply with Rule 3 of our Rules of Appellate
Procedure for appeal in a civil matter. In my discretion, I join Judge Jackson in
allowing Defendant’s Petition for Writ of Certiorari to review the 2020 SBM Orders.
ANALYSIS
¶ 86 On appeal, Defendant (A) challenges the facial validity of the indictments
charging him with first-degree sexual offense with a child, first-degree rape, and
incest; (B) argues the trial court erred by imposing lifetime SBM because the findings
do not support it; and (C) argues the trial court erred by imposing lifetime SBM
because the trial court did not hold a hearing to determine if lifetime SBM was a
reasonable Fourth Amendment search. After we allowed Defendant’s motion for
supplemental briefing on 24 May 2021, Defendant filed a supplemental brief arguing,
alternatively, he “received statutory ineffective assistance of counsel when his
resentencing lawyer failed to object to the imposition of lifetime [SBM].”
A. Sufficiency of the Indictments
¶ 87 First, Defendant argues that, because the sex offense with a child indictments,
first-degree rape indictment, and incest indictment referenced the victim only by her
initials and not her full name, they were facially defective and the defect rendered
the trial court without subject matter jurisdiction to enter judgment on these
convictions against Defendant. “[W]e review the sufficiency of an indictment de
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
novo.” State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409, disc. rev. denied,
appeal dismissed, 363 N.C. 586, 683 S.E.2d 215 (2009).
¶ 88 Defendant failed to object to the sufficiency of the indictments at trial and
raises this argument for the first time on appeal. Despite this, the issue is preserved
because “[t]he issue of a court’s jurisdiction over a matter may be raised at any time,
even for the first time on appeal or by a court sua sponte.” State v. Harwood, 243 N.C.
App. 425, 427-28, 777 S.E.2d 116, 118 (2015). Since indictments confer subject matter
jurisdiction on the trial court, Defendant’s argument may be raised for the first time
on appeal. See State v. Rogers, 256 N.C. App. 328, 337, 808 S.E.2d 156, 162 (2017)
(“In criminal cases, a valid indictment gives the trial court its subject matter
jurisdiction over the case.”).
¶ 89 Generally, “[a] criminal pleading, such as an [indictment], is fatally defective
if it ‘fails to state some essential and necessary element of the offense of which the
defendant is found guilty.’” State v. Ellis, 368 N.C. 342, 344, 776 S.E.2d 675, 677
(2015) (quoting State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)).
[I]t is not the function of an indictment to bind the hands
of the State with technical rules of pleading; rather, its
purposes are to identify clearly the crime being charged,
thereby putting the accused on reasonable notice to defend
against it and prepare for trial, and to protect the accused
from being jeopardized by the State more than once for the
same crime.
State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).
STATE V. PERKINS
2022-NCCOA-38
MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
¶ 90 We previously determined the use of initials to identify a victim is sufficient
for a second-degree rape and second-degree sexual offense indictment. See McKoy,
196 N.C. App. at 654, 675 S.E.2d at 410. Defendant argues McKoy is no longer
binding after our Supreme Court’s opinion in State v. White, 372 N.C. 248, 827 S.E.2d
80 (2019). Defendant asks us to extend the holding of White as “the logic of White
undercuts the continued viability of McKoy.”
¶ 91 We recently addressed this same argument in State v. Sechrest and held:
Nowhere in White does our Supreme Court explicitly or
implicitly overrule our decision in McKoy. Additionally,
White does not address the issue of naming a victim solely
by their initials since the indictment there referenced the
victim as “Victim #1.” McKoy remains our binding
precedent and “the use of initials to identify a victim
requires us to employ the Coker and Lowe tests to
determine if the indictment was sufficient to impart subject
matter jurisdiction.”
State v. Sechrest, 277 N.C. App. 372, 2021-NCCOA-204, ¶ 11 (quoting McKoy, 196
N.C. App. at 658, 675 S.E.2d at 412) (marks omitted).
1. Coker
¶ 92 In order to determine if the lack of the victim’s full name renders an indictment
fatally defective, Coker requires us to inquire whether a person of common
understanding would know the intent of the indictments was to charge Defendant
with the offense. State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984).
a. First-Degree Sexual Offenses
STATE V. PERKINS
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
¶ 93 Defendant was indicted for two counts of first-degree sexual offense with a
child: one count by digital vaginal penetration and one count by cunnilingus.
Defendant’s indictment for first-degree sexual offense with a child by digital vaginal
penetration alleges:
The Grand Jurors for the State upon their oath present
that between [1 November 2002] and [30 November 2002],
in Wake County, [Defendant] unlawfully, willfully and
feloniously did engage in a sex offense with [MXX (DOB:
XX/XX/19XX)8], a child under the age of 13 years, to wit:
digital-vaginal penetration. At the time of the offense,
[Defendant] was at least 12 years old and at least 4 years
older than [MXX]. This act was done in violation of
N.C.G.S. § 14-27.4(a)(1).
Similarly, Defendant’s indictment for first-degree sexual offense with a child by
cunnilingus alleges:
The Grand Jurors for the State upon their oath present
that between [1 April 2003] and [31 May 2003], in Wake
County, [Defendant] unlawfully, willfully and feloniously
did engage in a sex offense, to wit: cunnilingus, with [MXX
DOB: XX/XX/19XX)], a child under the age of 13 years. At
the time of the offense, [Defendant] was at least 12 years
old and at least 4 years older than [MXX][.] This act was
done in violation of N.C.G.S. § 14-27.4(a)(1).
¶ 94 At the time of the offenses, N.C.G.S. § 14-27.4(a)(1) provided:
(a) A person is guilty of a sexual offense in the first degree
if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years
8 The juvenile’s date of birth is redacted throughout this opinion to protect her identity.
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
and the defendant is at least 12 years old and is at least
four years older than the victim[.]
N.C.G.S. § 14-27.4(a)(1) (2002).9 Both indictments tracked the statutory language of
N.C.G.S. § 14-27.4. Id. While the statute defining a sexual offense in the first degree
requires the offense to be with “a child under the age of 13 years[,]” id., “the
indictment charging this offense ‘does not need to state the victim’s full name, nor
does it need to add periods after each letter in initials in order to accomplish the
common sense understanding that initials represent a person.’” Sechrest, 2021-
NCCOA-204 at ¶ 13 (quoting McKoy, 196 N.C. App. at 654, 675 S.E.2d at 410) (marks
omitted). A person of common understanding would know the intent of the
indictments was to charge Defendant with first-degree sexual offense with a child.
The Coker prong of McKoy is satisfied for these indictments.
b. First-Degree Rape
¶ 95 Defendant’s indictment for first-degree rape alleges:
The Grand Jurors for the State upon their oath present
that from [1 June 2004] through [30 June 2004], in Wake
County, [Defendant] unlawfully, willfully and feloniously
did engage in vaginal intercourse with [MXX (DOB:
XX/XX/19XX)], a child under the age of 13 years. At the
time of the offense, [Defendant] was at least 12 years old
and at least 4 years older than [MXX]. This was done in
9 N.C.G.S. § 14-27.4(a)(1) was recodified as N.C.G.S. § 14-27.26, effective 1 December 2015.
As the dates of these offenses were from 1 November 2002 to 30 November 2002 and 1 April 2003 to
31 May 2003, I use the then-existing version of the statute, N.C.G.S. § 14-27.4(a)(1), which was
effective from 1 October 1994 until 30 November 2015.
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violation of [N.C.G.S.] § 14-27.2[(a)].
¶ 96 At the time of the offense, N.C.G.S. § 14-27.2(a) provided:
(a) A person is guilty of rape in the first degree if the person
engages in vaginal intercourse:
(1) With a victim who is a child under the age of 13 years
and the defendant is at least 12 years old and is at least
four years older than the victim[.]
¶ 97 N.C.G.S. § 14-27.2(a)(1) (2004).10 The indictment tracked the statutory
language of N.C.G.S. § 14-27.2. Id. While the statute defining rape in the first degree
requires the offense to be with “a child under the age of 13 years[,]” id., “the
indictment charging this offense ‘does not need to state the victim’s full name, nor
does it need to add periods after each letter in initials in order to accomplish the
common sense understanding that initials represent a person.’” Sechrest, 2021-
NCCOA-204 at ¶ 13 (quoting McKoy, 196 N.C. App. at 654, 675 S.E.2d at 410). A
person of common understanding would know the intent of the indictment was to
charge Defendant with first-degree rape. The Coker prong of McKoy is satisfied for
this indictment as well.
c. Incest
¶ 98 Defendant’s indictment for incest alleges:
The Grand Jurors for the State upon their oath present
10 N.C.G.S. § 14-27.2 was recodified as N.C.G.S. § 14-27.21, effective 1 December 2015. As
the dates of the offense were between 1 June 2004 to 30 June 2004, I use the then-existing version of
the statute, N.C.G.S. § 14-27.2, which was effective until 30 November 2015.
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
that on or about [1 December 2008] through [31 December
2008], in Wake County, [Defendant] unlawfully, willfully
and feloniously did have carnal intercourse with [MXX
(DOB: XX/XX/19XX)], who is [Defendant’s] stepchild and
[Defendant] was aware that he was [MXX’s] stepfather.
This was done in violation of N.C.G.S. § 14-178.
¶ 99 N.C.G.S. § 14-178 provides, inter alia:
(a) Offense.  A person commits the offense of incest if the
person engages in carnal intercourse with the person’s . . .
parent or child or stepchild or legally adopted child . . . .
N.C.G.S. § 14-178 (2019).11 The indictment tracked the statutory language of
N.C.G.S. § 14-178. Id. While the statute defining incest requires the offense to be
with “a parent or child or stepchild or legally adopted child[,]” id., I see no reason to
differentiate the use of initials here from those in other sex offenses 12 where “the
indictment charging this offense ‘does not need to state the victim’s full name, nor
does it need to add periods after each letter in initials in order to accomplish the
common sense understanding that initials represent a person.’” Sechrest, 2021-
NCCOA-204 at ¶ 13 (quoting McKoy, 196 N.C. App. at 654, 675 S.E.2d at 410). A
person of common understanding would know the intent of the indictment was to
11 The language of N.C.G.S. § 14-178 has remained the same since 1 December 2002. As the
dates of this offense were between 1 December 2008 to 31 December 2008, I use the now-existing
version of N.C.G.S. § 14-178.
12 I note that this reference to incest as a “sex offense” is merely to address Defendant’s only
argument on appeal regarding jurisdiction and assume, without deciding, that incest is a “sex
offense” subject to the requirements of N.C.G.S. § 15-144.2(b).
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
charge Defendant with incest. The Coker prong of McKoy is satisfied for this
indictment.
¶ 100 Defendant’s indictments for first-degree sexual offenses with a child, first-
degree rape, and incest tracked the statutory language of the applicable statutes and
a person of common understanding would know the intent of each indictment. Each
of Defendant’s indictments satisfies the Coker prong of the McKoy analysis.
2. Lowe
¶ 101 In order to determine if the lack of the victim’s full name renders the
indictments fatally defective, Lowe requires us to inquire whether Defendant’s
constitutional rights to notice and freedom from double jeopardy were adequately
protected by the use of the victim’s initials. See State v. Lowe, 295 N.C. 596, 603, 247
S.E.2d 878, 883 (1978).
¶ 102 The Record demonstrates Defendant had notice of the identity of the victim.
The indictments alleged the victim is Defendant’s stepchild and Defendant was aware
that he was the victim’s stepfather. The indictments also contained the victim’s date
of birth, a unique piece of information that enabled Defendant to distinguish between
the named victim and all other people in conjunction with the victim’s initials.
Further, Defendant makes no argument on appeal he had difficulty preparing his
case because of the use of “[MXX]” instead of the victim’s full name. See McKoy, 196
N.C. App. at 657-58, 675 S.E.2d at 412; Sechrest, 2021-NCCOA-204 at ¶ 14. In
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
addition, the victim testified at Defendant’s third trial and identified herself by her
full name in open court. See McKoy, 196 N.C. App. at 658, 675 S.E.2d at 412; Sechrest,
2021-NCCOA-204 at ¶ 14. There is no possibility that Defendant was confused
regarding the identity of the victim. The use of “[MXX],” together with the date of
birth, in the indictments provided Defendant with sufficient notice to prepare his
defense and protect himself against future prosecutions for the same crimes.
3. Conclusion
¶ 103 The indictments charging Defendant with first-degree sexual offenses with a
child, first-degree rape, and incest are sufficient to meet the analysis emphasized by
McKoy as outlined in Coker and Lowe. The use of the victim’s initials and her date of
birth in the indictments did not render them fatally defective, and the trial court had
subject matter jurisdiction over these charges.
B. 2020 SBM Orders
¶ 104 Next, Defendant challenges the 2020 SBM Orders. Defendant filed a Petition
for Writ of Certiorari seeking our review of the merits of his SBM arguments.
Defendant argues the trial court erred by finding he is a recidivist and by finding that
incest is an aggravated offense. He further contends that if he is not a recidivist and
incest is not an aggravated offense, then it was a violation of N.C.G.S. § 14-208.40A(c)
for the trial court to order lifetime enrollment in SBM.
¶ 105 Defendant also argues the trial court erred in imposing lifetime SBM because
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the State failed to meet its burden of proving that the imposition of lifetime SBM
amounted to a reasonable search under the Fourth Amendment and lifetime SBM
was ordered without any argument or evidence regarding the reasonableness of the
Fourth Amendment search effected by SBM.
¶ 106 Finally, on 24 May 2021, we allowed Defendant’s motion for leave to file a
supplemental brief based on our decision in Spinks, where we held an indigent
defendant has a statutory right to effective assistance of counsel in an SBM hearing.
State v. Spinks, 277 N.C. App. 554, 2021-NCCOA-218, ¶ 60. In his supplemental
brief, Defendant argues his attorney’s failure to object to the imposition of lifetime
SBM rises to the level of ineffective assistance of counsel, which deprived Defendant
of a fair hearing because the State did not put forth any evidence in support of the
2020 SBM Orders and no hearing was held.
¶ 107 Defendant filed a Petition for Writ of Certiorari requesting our review of the
2020 SBM Orders, which I join Judge Jackson in exercising our discretion to allow,
albeit for a separate reason. However, because I conclude that the trial court lacked
subject matter jurisdiction to enter the 2020 SBM Orders, I would vacate them,
rendering Defendant’s arguments concerning the 2020 SBM Orders moot and leaving
the 2012 SBM Orders in effect.
¶ 108 Although no party raises the issue on appeal, my review of the Record leads
me to conclude that the trial court lacked jurisdiction to enter the 2020 SBM Orders.
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As a result, I would vacate the 2020 SBM Orders and need not address Defendant’s
substantive challenges to the 2020 SBM Orders.
¶ 109 “It is well-established that the issue of a court’s jurisdiction over a matter may
be raised at any time, even for the first time on appeal or by a court sua sponte.” State
v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008). “The existence of
subject matter jurisdiction is a matter of law and cannot be conferred upon a court by
consent.” State v. Williams, 368 N.C. 620, 628, 781 S.E.2d 268, 274 (2016) (marks
and citation omitted). “[W]hether a trial court has subject matter jurisdiction is a
question of law, which is reviewable on appeal de novo.” State v. Black, 197 N.C. App.
373, 377, 677 S.E.2d 199, 202 (2009). We have stated that
jurisdiction is the legal power and authority of a court to
make a decision that binds the parties to any matter
properly brought before it. The court must have subject
matter jurisdiction, or jurisdiction over the nature of the
case and the type of relief sought, in order to decide a case.
A universal principle as old as the law is that the
proceedings of a court without jurisdiction of the subject
matter are a nullity. The General Assembly within
constitutional limitations, can fix and circumscribe the
jurisdiction of the courts of this State. Where jurisdiction
is statutory and the [General Assembly] requires the
[c]ourt to exercise its jurisdiction in a certain manner, to
follow a certain procedure, or otherwise subjects the [c]ourt
to certain limitations, an act of the [c]ourt beyond these
limits is in excess of its jurisdiction.
State v. Clayton, 206 N.C. App. 300, 303-04, 697 S.E.2d 428, 431 (2010) (marks and
citations omitted).
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¶ 110 In State v. Clayton, we held that a trial court lacked jurisdiction to enroll a
defendant in SBM where the trial court had previously held an SBM hearing and
determined that the defendant was not required to enroll in SBM. Id. at 305, 697
S.E.2d at 432. There, the defendant was convicted of two counts of indecent liberties
and was placed on probation. Id. at 301, 697 S.E.2d at 430. Following these
convictions, the trial court determined that the defendant was not required to enroll
in SBM. Id. At a subsequent probation violation hearing, the trial court reconsidered
SBM and ordered that the defendant enroll in SBM for 10 years. Id. at 301-02, 697
S.E.2d at 430. The defendant appealed from the second SBM order only. Id. at 305,
697 S.E.2d at 432. In light of the SBM procedures set forth in N.C.G.S. § 14-208.40A
and N.C.G.S. § 14-208.40B, we held that “[t]he trial court did not have any basis to
conduct another SBM hearing, where it had already held an SBM hearing based upon
the same reportable convictions . . . .” Id. We concluded that “the trial court did not
have jurisdiction to conduct the [later] SBM hearing or to order [the] defendant to
enroll in SBM for a period of 10 years. The SBM statutes do not provide for
reassessment of [the] defendant’s SBM eligibility based on the same reportable
conviction, after the initial SBM determination is made based on that conviction.” Id.
at 305-06, 697 S.E.2d at 432 (marks and citation omitted). We then “vacate[d] the
trial court’s order enrolling [the] defendant in SBM for a period of 10 years” and
determined that we did not “need [to] address [the] defendant’s remaining arguments
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
challenging the trial court’s enrollment of [the] defendant in SBM.” Id. at 306, 697
S.E.2d at 433.
¶ 111 We have applied Clayton in a similar factual scenario to the one sub judice in
our prior unpublished decision State v. Streater, COA 10-740, 209 N.C. App. 756, 710
S.E.2d 707, 2011 WL 705168 (2011) (unpublished) (“Streater II”). In Streater II, the
defendant was resentenced in 2010 for a 2008 conviction of first-degree rape after we
remanded the 2008 sentence for a new sentencing hearing in an earlier appeal
(“Streater I”). Id. at *1; see also State v. Streater, 197 N.C. App. 632, 634, 678 S.E.2d
367, 370, disc. rev. denied, 363 N.C. 661, 687 S.E.2d 293 (2009). The 2008 conviction
had resulted in the entry of an SBM order. Streater II at *1 n.2. In Streater I, the
defendant did not challenge the 2008 SBM order and we did not rule on it. Id.; see
also Streater I, 197 N.C. App. 632, 678 S.E.2d 367. Nonetheless, the trial court
entered a new SBM order at the 2010 resentencing. Streater II at *1. On appeal
from the 2010 resentencing, we held that there was no indication that the 2008 SBM
order was no longer in effect, and, relying on Clayton, concluded that “the trial court
was without jurisdiction to again direct [the] [d]efendant to register and enroll in the
SBM program.” Id. at *3. Ultimately, we vacated the trial court’s 2010 SBM order
and held the 2008 SBM order was still in effect, as the 2008 order “remain[ed]
unchallenged and unreversed such that the trial court was without jurisdiction to
again require [the] [d]efendant to register as a sex offender and enroll in SBM in
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
2010.” Id. at *5. Although Streater II is unpublished, I find then-Judge, now-former
Chief Justice, Beasley’s reasoning persuasive and adopt the case here.
¶ 112 Like the trial court in Streater II and Clayton, here, the trial court lacked
jurisdiction to enter the 2020 SBM Orders. In his second trial, Defendant was
convicted of one count of indecent liberties with a child on 29 September 2011, while
a mistrial was declared for the remaining charges. At a subsequent hearing, after
receiving a risk assessment for Defendant, the trial court ultimately concluded that
Defendant “[did] not require the highest possible level of supervision and monitoring
and shall not [enroll] in [SBM]” for this conviction. In 2012, following his third trial,
Defendant was convicted of two counts of first-degree sexual offense with a child
under the age of thirteen, one count of first-degree rape with a child under the age of
thirteen, and one count of incest. Immediately after trial, the trial court entered
orders requiring Defendant “[to] enroll in [SBM] for his[] natural life, unless
monitoring is terminated pursuant to [N.C.G.S. §] 14-208.43” for each conviction.
Although Defendant appealed from his second and third trials, he did not raise any
issues related to SBM, and we found no error in each appeal. See Perkins I; Perkins
II.
¶ 113 Additionally, although Defendant filed an MAR in 2016, he only contended
that he received ineffective assistance of counsel due to his trial attorney in the third
trial erroneously stipulating to a Prior Record Level II. Nowhere in his MAR did he
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challenge the 2012 SBM Orders. The trial court initially denied this MAR, but we
allowed Defendant’s petition for writ of certiorari for the limited purpose of vacating
the trial court’s order that denied the MAR and remanding for reconsideration of the
MAR in light of two cases. On remand, the trial court granted a new sentencing
hearing, like we did in Streater I, stating:
[T]he [c]ourt finds the [MAR] to have merit in regard to []
Defendant’s prior record level for felony sentencing. While
the [c]ourt does not find that the stipulation by trial
counsel rises to the level of ineffective assistance of counsel,
the [c]ourt does find the stipulation to be erroneous and,
therefore, [] Defendant’s motion for a new sentencing
hearing is GRANTED.
(Emphasis added). Following the trial court’s resentencing hearing in 2020, the trial
court entered an order that indicated “Defendant’s [MAR] is granted in part in regard
to [] Defendant’s prior record level for felony sentencing. Thus, the sentence imposed
by the Honorable Judge Gessner on 12/04/2012 is vacated and [] Defendant is
resentenced.” (Emphasis added). The trial court then entered new judgments along
with new SBM and sex offender registration orders; however, the 2020 SBM Orders
were entered without jurisdiction.
¶ 114 The trial court’s MAR order remanded for a new sentencing hearing, and,
following the new sentencing hearing, the trial court vacated Defendant’s sentence
from the convictions at the third trial. I note that Defendant did not challenge the
2012 SBM Orders from the third trial in his prior appeal or his MAR, and the trial
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
court did not address the 2012 SBM Orders in any of its orders. As SBM is not a
criminal sentence resulting from criminal judgment, but is instead a “civil, regulatory
scheme,” I conclude the trial court did not vacate the 2012 SBM Orders by vacating
Defendant’s sentence. See State v. Grady, 372 N.C. 509, 543, 831 S.E.2d 542, 567
(2019) (acknowledging that “the SBM program is not a form of criminal punishment,
but rather a ‘civil, regulatory scheme’”); State v. Singleton, 201 N.C. App. 620, 625,
689 S.E.2d 562, 565 (2010) (“[T]he SBM determination hearing has no effect
whatsoever upon the defendant’s prior criminal convictions or sentencing and is not
a part of any ‘criminal proceedings’ or ‘criminal prosecution’ of the defendant.”);
N.C.G.S. § 14-208.42 (2012) (emphasis added) (“[W]hen an offender is required to
enroll in [SBM] pursuant to [N.C.G.S. §] 14-208.40A or [N.C.G.S. §] 14-208.40B, upon
completion of the offender’s sentence and any term of parole, post-release supervision,
intermediate punishment, or supervised probation that follows the sentence, the
offender shall continue to be enrolled in the [SBM] program for the period required
by [N.C.G.S. §] 14-208.40A or [N.C.G.S. §] 14-208.40B unless the requirement that
the person enroll in a[n] [SBM] program is terminated pursuant to [N.C.G.S. §] 14-
208.43.”); see generally Streater II.
¶ 115 I have found nothing in the Record indicating the trial court vacated the 2012
SBM Orders, and there is nothing to suggest either party presented any arguments
to the trial court related to the validity of the 2012 SBM Orders. In fact, Defendant’s
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attorney at the resentencing hearing appears to have expected the 2012 SBM Orders
to remain in effect following Defendant’s resentencing:
If [Defendant] were to be released after serving the
maximum on [the Defendant’s requested sentence], he
would be over 60 years old. He would still have to undergo
five years of intensive post-release supervision as well as
be subject to lifetime [SBM] and sex offender registration
that this [c]ourt has already ordered for all of the rest of his
natural life.
(Emphasis added). Since the 2012 SBM Orders were still in effect at the time of
Defendant’s resentencing, like in Streater II, I conclude the trial court’s purported
SBM orders entered at the resentencing hearing were entered without jurisdiction.
As stated in Clayton, “[t]he SBM statutes do not provide for reassessment of [a]
defendant’s SBM eligibility based on the same reportable conviction, after the initial
SBM determination is made based on that conviction.” Clayton, 206 N.C. App. at
305-06, 697 S.E.2d at 432. This is true of both the current SBM statutes and those
in place at the time of Defendant’s 2012 sentencing. See generally N.C.G.S. § 14-
208.40A (2012); N.C.G.S. § 14-208.40B (2012); N.C.G.S. § 14-208.40A (2020); N.C.G.S.
§ 14-208.40B (2020).
¶ 116 Mirroring our conclusions in Clayton and Streater II, I conclude that the trial
court acted beyond its statutory authority and, thus, without jurisdiction when it
entered its additional 2020 SBM Orders at the resentencing hearing because the 2012
SBM Orders remained in effect. As a result, I would vacate the trial court’s 2020
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SBM Orders and emphasize that Defendant is still required to comply with the 2012
SBM Orders.
¶ 117 Determining the 2020 SBM Orders should be vacated, Defendant’s challenges
on appeal based upon the entry of the 2020 SBM Orders and the ineffective assistance
of counsel regarding the 2020 SBM Orders are moot, and I would dismiss this portion
of Defendant’s appeal. Furthermore, in my discretion, I decline to invoke Rule 2 or
treat Defendant’s appeal as a petition for writ of certiorari to review Defendant’s 2012
SBM Orders.
CONCLUSION
¶ 118 The use of the victim’s initials in all four indictments did not render the
indictments fatally defective. The trial court had subject matter jurisdiction over the
charges of first-degree sexual offense with a child by digital vaginal penetration, first-
degree sexual offense with a child by cunnilingus, first-degree rape, and incest.
¶ 119 The trial court acted without jurisdiction when it purported to enter the new
2020 SBM Orders following the resentencing hearing, as the 2012 SBM Orders still
were, and are, in effect. As a result, I would vacate the trial court’s 2020 SBM Orders
and dismiss the portion of Defendant’s appeal substantively challenging the 2020
SBM Orders and the efficacy of his counsel in relation to the 2020 SBM Orders.
¶ 120 As a result, I respectfully concur with Judge Jackson in part as to the validity
of the indictments, concur in result only in part as to the issuance of a petition for
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MURPHY, J., Concurring in Part; Concurring in Result Only in Part; and Dissenting in Part
writ of certiorari to review the 2020 SBM Orders, and dissent in part as to the validity
of the 2020 SBM Orders.